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THE EARLY SLAVE LAWS 

OF 

MISSISSIPPI. 



BEING SOME BRIEF OBSERVATIONS THEREON, IN 

A PAPER READ BEFORE THE MISSISSIPPI 

HISTORICAL SOCIETY, AT A MEETING 

HELD IN THE CITY OF NATCHilZ, 

APRIL 20TH-2IST, 1899. 



BY 

ALFRED H. STONE, ESQ., 

GREENVILLE, MISS. 



Reprinted from the Publication of the Mississippi Historical 

Soci ty for iSgg 




Class f L l t AT 

Book_/VjA..lg_ 



THE EARLY SLAVE LAWS OF MISSISSIPPI. 

BEING SOME BRIEF OBSERVATIONS THEREON, IN A PAPER READ 

BEFORE THE MISSISSIPPI HISTORICAL SOCIETY, AT A MEETING 

HELD IN THE CITY OF NATCHEZ, APKIL 20TH-21ST, L899. 



BY ALFRED II. STONE, ESQ. 

Probably no institution with which history deals has 
been the centre of more momentous events, or the subject 
of more earnest and acrimonious discussion than that of 
human slavery. To the study of whatever of the states of 
civilization we may devote ourselves, we find that, regardless 
of its present position of advancement, at some period of its 
history the personal ownership of human beings was a recog- 
nized feature of its social fabric. Nor is it true that the ex- 
istence of this institution at any certain period of a people's 
history can be taken as an evidence of a low state of intel- 
lectual, moral or social development during- such period. 
Quite the contrary was often the case, — despite the fact that 
we have heard so much of "the demoralizing and degrading 
effects of slavery" and are told that it was ever a curse upon 
any people who tolerated it, — for both biblical and secular 
history are replete with testimony to the magnificent achieve- 
ments of nations whose most glorious epochs were those 
during which slavery flourished. 

It is foreign, however, to our purpose to engage in a dis- 
cussion of slavery as a civil institution, or to question wheth- 
er its toleration was of good or evil effect, or yet to inquire 
whether it could ever have justifiably existed. We propose 
to look at but one of its many features, and that merely 
from the standpoint of an investigator of what has already 
passed into the realm of ancient history, become something 
''flat, stale and unprofitable" to all save the curiously in- 
clined. 

The bitter and often unreasoning hatred, on the part of 
many, of the institution and those who upheld it in this 






134 Alississippi Historical Society. 

country, and the repugnance with which it came to be gener- 
ally regarded by even sincere and generously inclined peo- 
ple in a section in which it was non-existent, were unques- 
tionably largely induced by the constant contemplation from 
a distance of an institution the softer aspects of which could 
not be understood by strangers to its inner life,— but of 
which the one dominant feature was the bare fact of the 
bodily ownership of human beings, — the mere existence of 
the legal right to barter, sell and trade in human-kind. Of 
the relations between the master and his human chattels, 
and of the laws governing those relations, except in rare in- 
stances, they seemed to be ignorant, — as well, apparently, 
as of the safeguards with which a humane public sentiment 
surrounded the treatment of the slave, both by the law and 
the master. 

It is a brief consideration of some of these laws, as they 
stood upon the statute books of our own state during the 
earlier years of its history, that we beg to invite your atten- 
tion. 

Under an old Federal ordinance, passed in 1787, for the 
government of the Northwest Territory, it was provided 
that in that territory there should be "neither slavery nor 
involuntary servitude", — except of course for the punish- 
ment of crime. As the Congressional act of 1798, forming 
the Mississippi Territory, subjected it to the provisions of 
this ordinance, we note the somewhat curious fact that 
in Mississippi, in its incipient territorial organization, slav- 
ery was a prohibited institution. However, in the act of 
1802, which for the first time provided for the establishment 
of a government in the Mississippi Territory, this provis- 
ion alone of that ordinance was excepted, and slavery recog- 
ognized as legal. 

The first provision concerning slavery which we find in 
our books, after Mississippi became a state, is contained 
in a clause in our first constitution, adopted in the town of 
Washington, August 15th, 1817, which provided that the 
Legislature might establish in each county a Court of Pro- 






s 




The Early Slave Laws of Mississippi. 135 

bate, for the discharge of various enumerated functions 
"and for the trial of slaves". This very first provision 
touching them seems to look to establishing proper legal 
means for their control, and in itself bears testimony to the 
falsity of the notion, which at that time some pretended to 
entertain, that the whim of the master was the sole law for 
the governing of the slave, and that the latter had no legal 
status whatever. 

A little further along in the same instrument we find the 
Legislature delegated with authority to pass laws prohib- 
itive of the introduction into the State of slaves "as mer- 
chandise". This apparently evidences the existence, even 
at that early date, of a spirit of opposition to the business of 
"slave trading" as a common vocation which easily accounts 
for the feeling with which the "nigger trader" was regarded 
by the better classes, — those among whom he would look for 
purchasers of his goods. In this same clause the Legislature 
is empowered to pass laws to oblige the owner of slaves "to 
treat them with humanity", to provide for them necessarv 
clothing and provisions, to abstain from all injuries to them 
extending to life or limb," and, in case of the failure to com- 
ply with the directions of such laws, the slave might be sold 
to some more humane master. By this instrument it was 
also expressly provided that the Legislature should never 
have the power to deprive the slave of the right to an impar- 
tial trial by a jury. 

I think it proper that we should call to mind these pro- 
visions of our first organic law, — testifying as they do to the 
treatment which law and society exacted of the master to- 
ward his slave; — but. while we can not fail to be impressed 
with the spirit of justice and humanity manifested in our 
early constitution, at a casual reading, some of the succeed- 
ing legislative enactments might be regarded as extremely 
harsh. 

But in considering laws of this nature, abhorrent as they 
may be to our present sense of humane propriety, we must 
not lose sight of the time in which they were effective, and 



136 Mississippi Historical Society. 

our judgment must be tempered by a remembrance of the 
fact that they were operative in a state of society which, 
while no less refined, or lower in its moral tone than our own, 
yet looked upon criminal laws from a viewpoint radically dif- 
ferent from that of to-day. 

The debtor's prison still existed in England, — the stocks 
and pillory were instruments of common use both here and 
there, — the public whipping post claimed its daily victims, — 
the rack and thumb-screw were still applied to refractory 
witnesses in some of the courts of the old world and there 
was not yet in all Christendom a country in which women 
had equal property rights with men, — which, by the way, 
Mississippi was the first community in the civilized world to 
confer, and she had not progressed thus far by some twenty 
odd years. 

For all of the many petty offenses of which the slave 
might be guilty the punishment was confined to "stripes", — 
few or many in the discretion of the justice of the peace, 
though for every offense the maximum number was fixed by 
law. Nor could they be applied but by authority of the 
magistrate, after due examination, though there was almost 
invariably coupled with the designating of the number of 
stripes the injunction that they be "well laid on". The mode 
of procedure in all cases wherein the offense was punishable 
with stripes was for the justice to summon "two respectable 
slave-holders to assist him", — the evidence for and against 
the accused being laid before them, the three determined his 
guilt and fixed the punishment, — within the limits of the law. 

The extent of this punishment varied all the way from 
ten stripes for "presuming to come upon the plantation of 
any person without leave from his master", up to thirty-nine 
for grand and petty larceny, between the punishment for 
which there was no difference, and for "buying or selling 
without a written permission from his master". This latter 
seems to have been regarded as quite an offense, as we have 
frequent references to it, — the punishment fixed being- as 
great as that attached to misdemeanors which we would con- 



The Early Slave Lazes of Mississippi. 1 37 

sider much graver. It merely consisted in the slave buying 
or selling anything- whatever without his master's written 
permission, — such permission being necessary before be 
could lawfully carry on even the smallest of commercial ex- 
changes. 

Even in our present state of boasted enlightenment it is 
questioned by many thinkers and criminologists whether we 
have been wise in anywhere substituting the jail for the 
whipping post for minor offenses. At all events, as a deter- 
rent to petty crime among our colored brethren one sound 
thrashing, "well laid on", would most likely prove more ef- 
ficacious than any jail sentence imposed by a latter day jus- 
tice of the peace. 

* It was unlawful for a slave to leave his master's premi- 
ises without permission, and an offense for a negro, bond or 
\'rcc, to have in his possession any weapons of any kind. 
The penalty for engaging in any "riots, routs or unlawful 
assemblages" was the maximum thirty-nine lashes, and the 
same act provided that if any white person should be con- 
victed in the Circuit Court of "being in company with slaves 
or free negroes at any unlawful meeting" he should be fined 
twenty dollars, to go to the informer, and, moreover, receive 
not exceeding twenty lashes on his bare back, at the dis- 
cretion of the court". 

It was in defining such unlawful meetings or assem- 
blages to include "all assemblies of slaves, or free negroes 
or mulattoes, mixing and associating with such slaves, above 
the number of five, at any place of public resort, or at a meet- 
ing house, in the nig-ht, or at any school, for teaching them 
reading or writing, either in the day or night, under whatso- 
ever pretext" that our slave holding law makers sinned so 
grievously in the eyes of the abolitionist. While it may be 
observed that this particular act contained nothing to legal! \ 
prevent a master from teaching his slave to read and write, 
yet the policy of the law at that time is of course well known 
to us all to have been opposed to any such education. 

I shall not engage in any discussion of the question of 



138 Mississippi Historical Society. 

negro education nor seek to air vay personal views in regard 
to it, but merely venture the statement that the experience 
of a third of a century, involving - the expenditure of millions 
of dollars by the white race upon it, — the moral, social and 
intellectual condition of the negro to-day calmly and fairly 
considered, — have not demonstrated the unwisdom of the 
slave holders position of seventy six years ago, nor yet pro- 
ven an adherance to opposite views to be for the best inter- 
ests of either race. 

In this connection it was provided that nothing contained 
in any of these enactments should be so construed as to pre- 
vent a master from allowing his slave to go to places of re- 
ligious worship, sag-ely demanding, however, "that such wor- 
ship be conducted by a regularly ordained or licensed white 
minister, or attended by at least two discreet and reputable 
white persons, appointed by some regular church or religious 
society", — it not being lawful for a negro to exercise any of 
the functions of a minister of the Gospel, — though a master 
might allow his slave to preach to his own slaves, but to none 
others. 

It was unlawful for a white man to do any trading what" 
soever with a slave on the Sabbath, without the consent of the 
master in writing first being had by the slave, and with a free 
negro it was unlawful on that day under any circumstances, — 
our early fathers seemingly being at all times possessed of a 
very high regard for the general efficacy and saving grace of 
a written permission from a master. 

The right of a slave to act in detense of himself when 
assaulted by a white person was at all times recognized by 
the law, and while it was an offense punishable by thirty-nine 
lashes for a slave to "use abusive or provoking language to, 
or to lift his hand in opposition to a white person" yet no pun- 
ishment was to be inflicted where it appeared to the justice 
that he was acting in self defense. 

It was not lawful for a slave to possess horses, 
mules, sheep, cattle, hogs or dogs, nor could he cultivate any 
cotton for his own use,— the only penalty attached, however. 



The Early Slave Laws of Mississippi. 13'j 

being the forfeiture of the property,— except as to dogs, for 
the keeping- of which he might be punished with not exceed- 
ing twenty-five stripes. Cruel or unusual punishment, for 

various plantation or house-hold offenses, could not be inflicted 
on a slave by his master, — under penalty of a line of five 
hundred dollars for each offense, the fine to go to the state 
treasury, for the benefit of the "literary fund". 

The various misdemeanors enumerated here constituted 
the bulk of the crimes of which it was thought probable the 
slave would be guilty, — there being but few others contem- 
plated in our early criminal legislation. 

For such others, however, much graver penalties were 
provided. 

For an assult with intent to kill, by a slave upon a white 
person, where express malice was clearly proven, the punish- 
ment was death. If, however, only implied malice were 
shown, the slave was to receive any number of lashes, -not 
exceeding one hundred on each day, for three days in succes- 
sion. For all such offenses, it must be borne in mind, the 
law guaranteed to the slave the right to a fair and impartial 
trial by a jury. The sheriff was required to summon "twenty- 
four good and lawful men of the vicinage," of whom at least 
twelve should be slave holders in their own right, from which 
number a jury of twelve was selected and duly sworn for the 
trial of the case. On such juries neither the master of the 
offending slave nor any person related to him, nor any one 
related to the prosecutor could sit. No previous indictment 
was essential, but in all other respects the trial was con- 
ducted just as in the case of a white person. It was obligatory 
upon the part of the court, where the owner failed to provide 
proper counsel for his slave, to appoint counsel to defend 
him, charging the fee for such service to the master. The 
regular right of a challenge of jurors for cause was given 
the slave, and in capital cases six peremtory challenges were 
also allowed him, as was also the usual right of appeal. 

On a trial for a capital crime it was permissible for the 
jury to convict of a crime under that degree, if the evidence 



140 Mississippi Historical Society. 

justified such a verdict, — the punishment then being- "by 
burning - in the hand, or by stripes," according to the magni- 
tude of the offense, — "burning in the hand" being prescribed 
for nearly all felonies not punishable with death. 

The maiming or manslaughter of a white person, rape 
and arson were all capital offenses, — as was also the "consult- 
ing, advising or conspiring to make insurrection or rebellion;" 
while for any free persons to be guilty of the latter offense 
with a slave the death penalty was also provided. Whenever 
sentence of death was finally passed upon a slave, he was al- 
ways to be allowed at least twenty days before its execution, 
except in case of insurrection or conspiracy. 

At a much later date than that which we are considering 
an act was passed providing- for the payment to the owner of 
a condemned slave, out of the state treasury, of an amount 
equal to one-half his assessed value, to be paid as soon as he 
was executed. 

Wherever it was found necessary to examine a free negro 
or slave, as a witness in any trial, no oath whatever was ad- 
ministered. He was charged by the court to declare the truth 
in the following words : "You are brought here as a witness, 
and, by direction of the law, I am to tell you, before you give 
your evidence, that you must tell the truth, the whole truth 
and nothing but the truth; and if it be found hereafter that 
you tell a lie, and give false teatimony in this matter, you 
must, for so doing, have both your ears nailed to the pillory; 
and cut off, and receive thirty-nine lashes on your bare back, 
well laid on, at the common whipping post." 

It did not conclude "So help you God." 

The crime of perjury has always been regarded as pe- 
culiarly heinous, and we find it punishable here more 
severely than any other noncapital offense. The penalty was. 
as indicated in the charge, to "have one ear nailed to the pil- 
lory, and there to stand for the space of one hour, and then 
the said ear to be cut off, and thereafter the other ear nailed 
in like manner, and cut off at the expiration of one other 
hour," in addition to the thirty-nine lashes prescribed. How- 



/ 



' 



The Early Slave Laws of Mississippi, 141 

ever, notwithstanding the mandatory language of the statute 
and of the charge, this punishment would seem to haw been 

discretionary, for the act concludes, "or such other punish- 
ment as the court shall think proper, not extending to Life or 
limb." Be that as it may, it is safe to conclude that no such 
punishment was ever inflicted, and we can find nothing in 
any of the books tending to show that it was ever resorted 
to. 

It was only permissable for an owner to emancipate a 
slave by and with the consent of the Legislature, and then 
only by proving- that such slave had "performed some mere- 
torious act for the benefit of the owner, or some distinguished 
service for the state." 

The courts were always open to a negro held as a slave 
who claimed to be entitled to his freedom, -though no person 
being a member of any emancipation society could sit as a 
juror in the trial of such causes. 

While one of the earliest slave laws of which we have anv 
record was that prohibiting the importing- of slaves for sale. 
it was also made unlawful for a free negro to come into the 
state to lFve; and in 1831 and act was passed requiring every 
free negro between the ages of sixteen and fifty to remove 
from the state forever. But this was not followed by a gen- 
eral exodus, for the act contained a clause which allowed the 
negro to obtain from the Probate Court permission to remain 
in the state, upon a showing made of "good character and 
honest deportment." — though it was always exacted that 
every free negro should be duly registered in the county of 
his residence. 

In connection with these acts it would be interesting t<> 
review the earlier decisions of our Supreme Court,— as show- 
ing the spirit which actuated our judges when called upon to 
adjudicate in matters wherein the slave was involved, and 
the fairness and liberality displayed in the construction and 
application of the laws concerning him. But it is impossible 
in this brief paper to do more than glance at one or two. 
Among the very first decisions is one rendered in ISIS, in 



142 Mississippi Historical Society. 

which the learned judge held, in passing on an appeal for 
freedom from a number of negroes, claiming to be unlawfully 
detained as slaves, that the slaves in the Northwest Territory 
became free men by virtue of the ordinance of 1787, to which 
we have referred, and, with true justice, declared that, as 
such, they could "assert their freedom in the courts of this 
state and be protected therein." In the same opinion he ob- 
served that "slavery is condemned by reason and the laws of 
nature, and can only exist through municipal regulations; 
therefore in a matter of doubt, as between depriving an owner 
of a vested rig-ht, arising from law, and depriving a human 
being of his liberty, a natural right, the court would lean 'in 
favorem vitae et libetatis, '" and the petitioners were declared 
to be free. 

In another very old case we find it early judicially de- 
termined that, in this state, the unjustifiable killing of a slave 
was murder. 

This opinion, delivered in 1821, in the first years of our 
statehood, so clearly enunciates the humane principles which 
then actuated our courts, and to this good day continue to 
move them, in all their dealings w T ith the inferior race, that it 
is peculiarly worthy of a place in the records of a society de- 
voted to preserving the earlier history of our state and its 
people, and we may be pardoned for quoting its language at 
length. 

It was by Justice Clarke, in reviewing an appeal by 
a white man who had killed a skive in Adams county and 
been sentenced to hang therefor. He said, in part, "In 
some respects slaves may be considered as chattels, but in 
others they are regarded as men. The law views them as 
capable of committing crimes. This can only be upon the 
principle that they are men and rational beings. The Ro- 
man law has been much relied on by counsel for the defen- 
dant. That law was confined to the Roman Empire, giving 
the power of life and death over captives in war, as slaves, 
but it no more extended here than did the similar power 
given to parents over the lives of their children At a 



The Early Slave Laws of Mississippi, l I ! 

very early period in Virginia the power of life over slaves 

was given by statue, but as soon as these statues 

were repealed it was at once considered by their courts thai 

the killing of a slave might be murder In this 

state the Legislature have considered slaves as reasonable 
and accountable beings, and it would be a stigma upon the 
character of the" state, and a reproach to the administration 
of justice if the life of a slave could be taken with impunity, 
— if he could be murdered in cold blood, without subjecting 
the offender to the highest penalty known to the criminal 
jurisprudence of the county. Has the slave no rights be- 
cause he is deprived of his freedom? He is still a human 
being, and possesses all those rights of which he is not de- 
prived by the positive provisions of the law, — but in vain shall 
we look for any law passed by the enlightened and philan- 
thropic legislature of this state giving to the master power 
over the life of the slave. Such a statute would be worthy the 
age of Draco or Caligula, and would be condemned by tin- 
unanimous voice of the people of this state, where cruelty, 
even, to slaves, much less the taking away of life, meets with 

universal reprobation Because slaves can be 

bought and sold it does not follow that they can be deprived 

of life The right of the master exists not by force of 

the law of nature or of nations, but by virtue only of the posi- 
tive law of the state, — and, although that gives to the master 
the right to command the services of the slave, requiring the 
master to feed and clothe the slave from infancy till death, 
yet it gives the master no right to take the life of the slave, 
and if the offense be not murder it is not a crime, and sub- 
jects the offender to no punishment A distinction 

once existed in England between the killing of a Dane and a 
Saxon, but even in Coke's time the killing oi any rational 

being was murder At one period of the Roman 

history, a history written in the blood of vanquished nations, 
slaves were regarded as captives, whose lives had been 
spared in battle, and the savage conqueror might take away 
the life of the captive, and therefore he might take away the 



\ 



144 Mississippi Historical Society. 

life of the slave. But the civil law of Rome extirpated this 
barberous privilege, and rendered the killing - of a slave a 
capital offense. When the Northern barbarians overran 
Southern Europe, they had no laws but those of conquerors 
and conquered, victors and captives, yet even by this savage 
people no distinction was recognzied between the killing in 
cold blood of a slave or a freeman. And shall this court, in 
the nineteenth century, establish a principle too sanguinary 
for the code even of the Goths and Vandals, and extend to 
the wnole community the right to murder slaves with im- 
punity? 

The motion to arrest the judgment must be overruled." 

The defendant was sentenced to hang on July 27th, 1821. 

I have endeavored as well as possible in the brief time 
allotted me, to refer to the most important features of our 
early slave laws. It has not been my purpose to attempt an 
exhausted research into such legislation, — the object sought 
being merely to show, as a matter of some historical inter- 
est, from an impartial mention of the early acts concerning 
slavery, that the position of the slave in Mississippi was not 
as it has sometimes been depicted ; that so far from being a 
creature with no legal status, subject to the whims and ca- 
prices of his master, — a mere chattel, over which even the 
power of life and death might be exercised at will, — he was 
surrounded by all the protection which just laws, humanely 
administered, could afford, — that the courts were ever open 
to him, and that he could, and did, appeal to them, and not 
in vain. 

If any unknown or forgotten facts of historical impor- 
tance to us have been brought to light, my purpose has been 
accomplished. 

We have only touched upon the legislative enactments 
concerning slavery, — and for us, who know that it existed, 
it is unnecessary to revert to that higher law which con- 
trolled the relations between master and slave, and com- 
pelled such conduct toward the latter as made of him in 
countless instances the devoted friend. 



The Early Slave Laws <>/ Mississippi. L4S 

Only an affection born of long years ol treatment in the 
main considerate and kind, could have furnished history 
with the spectacle of the espousal by the slave of bis mas- 
ter's cause, in a conflict the end of which meant so much of 

difference to the two. 

The four years of faithful devotion to which the women 
of the South bear willing- witness could never haw been 
exhibited by an enslaved people between whom and their 
masters the relations had been other than those we know 
to have existed. 

The society which made possible those relations was 
unique in tne history of civilization, — and in the annals of all 
the peoples who have passed through bondage the conduct 
of the negro slave stands without a parallel. 



AUG 26 



